Pre-emption covenant void for perpetuity concerns; declaratory relief in originating summons upheld.

A declaratory relief could be maintained in an originating summons where the claimant sought to clear title against an asserted pre-emption right, because section 42 of the Specific Relief Act, 1877 and the High Court Rules permitted such procedure for a legal character or right to property. The covenant of pre-emption in the sale deed was treated as an attempt to restrain alienation of immovable property indefinitely and to create a prohibited future interest. It was therefore void as offending the rule against perpetuities and public policy, and it created no enforceable right affecting title.

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Issues: (i) whether a declaratory relief could be granted in an originating summons under the applicable procedural and specific relief framework; (ii) whether the covenant of pre-emption in the sale-deed created enforceable rights in immovable property or was void for remoteness under the rule against perpetuities.

Issue (i): whether a declaratory relief could be granted in an originating summons under the applicable procedural and specific relief framework.

Analysis: Section 42 of the Specific Relief Act, 1877 permitted a person entitled to a legal character or right as to property to seek a declaration, and Rule 214 of the High Court Rules allowed such relief to be sought by originating summons where the case fell within that section. The plaintiffs were entitled to have their title cleared against the asserted right of pre-emption.

Conclusion: The declaratory relief was maintainable in the originating summons, in favour of the appellants.

Issue (ii): whether the covenant of pre-emption in the sale-deed created enforceable rights in immovable property or was void for remoteness under the rule against perpetuities.

Analysis: A contract for sale of land does not create an interest in land under Section 54 of the Transfer of Property Act, but contracts of this nature may still operate as enforceable obligations in certain circumstances. The covenant here purported to tie up the property indefinitely in favour of the vendor and his successors, and such a covenant could not be treated as a valid right binding the land or as a mere personal promise insulated from the rule against perpetuities. The court treated the covenant as an attempt to create a prohibited future interest and held that, on the principles governing remoteness and public policy, it was void.

Conclusion: The covenant of pre-emption was void and created no enforceable rights affecting the appellants' title, in favour of the appellants.

Final Conclusion: The appeal succeeded, and the declaration was made that the covenant did not affect the plaintiffs' title to the land and building.

Ratio Decidendi: A covenant for pre-emption that attempts to control alienation of immovable property indefinitely and operates as a future restraint on transfer is void as offending the rule against perpetuities and public policy, even where it is framed as a contractual stipulation.

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